Offences and Penalties for not Paying Maintenance
Subject to the defence that failure to make a payment in terms of a maintenance order is due to lack of means, a person who fails to make a particular payment in accordance with a maintenance order is guilty of a criminal offence and liable on conviction to a fine or to imprisonment. A parent is therefore fully entitled to lay a criminal charge against a person who is obliged to pay maintenance in terms of a court order if he/she fails to stick to the terms of the order. Although this step will likely result in a person’s arrest, it will not necessarily result in receiving payment.
The enforcement of maintenance payments is a highly problematic area. Often people liable to pay maintenance either refuse or simply neglect to fulfil their obligation. There are no clear guidelines on the enforcement of maintenance for children. A court may impose some of the following sanctions upon a maintenance defaulter:
Fine
Usually the defaulter cannot pay the fine, but even if he/she can, it is undesirable that the money should go to the state.
Imprisonment
The sentence for failure to pay maintenance arises from failure to obey a court order, which is a criminal offence. Defaulters can be imprisoned for a period not exceeding one year.
Suspended sentence
Suspended sentences are often imposed against defaulters. It is desirable that a sentence be suspended because someone who is sentenced to prison may lose his/her job, and will consequently be unable to maintain his/her dependents. One of the principal objects of the maintenance act is to ensure that minor children are properly supported by their parents and therefore it is often inappropriate to send transgressors to prison.
A court may make an order along the following lines: 60 days imprisonment, 50 days of which are suspended on condition that the accused:
Correctional supervision
Correctional supervision is community-based punishment and highly suitable for maintenance defaulters. It may include house arrest, compensation, employment when possible and necessary, and supervision by a probation officer.
Claiming maintenance
In order to claim for maintenance, you must first determine the reasonable needs of the child on a monthly basis. There is no hard and fast rule, but generally the child’s share of the common expenses in the household is determined by allocating one-part per child and two-parts per adult or older child. The following table may be used as an example of how to calculate these expenses properly. In this example, each child will need 20% of the total expense shared by all members of the household.
The enforcement of maintenance payments is a highly problematic area. Often people liable to pay maintenance either refuse or simply neglect to fulfil their obligation. There are no clear guidelines on the enforcement of maintenance for children. A court may impose some of the following sanctions upon a maintenance defaulter:
Fine
Usually the defaulter cannot pay the fine, but even if he/she can, it is undesirable that the money should go to the state.
Imprisonment
The sentence for failure to pay maintenance arises from failure to obey a court order, which is a criminal offence. Defaulters can be imprisoned for a period not exceeding one year.
Suspended sentence
Suspended sentences are often imposed against defaulters. It is desirable that a sentence be suspended because someone who is sentenced to prison may lose his/her job, and will consequently be unable to maintain his/her dependents. One of the principal objects of the maintenance act is to ensure that minor children are properly supported by their parents and therefore it is often inappropriate to send transgressors to prison.
A court may make an order along the following lines: 60 days imprisonment, 50 days of which are suspended on condition that the accused:
- is not convicted of a similar offence during the period of suspension;
- pays the arrear maintenance at the rate of X amount per month; and
- pays the state for the sheriff fees.
Correctional supervision
Correctional supervision is community-based punishment and highly suitable for maintenance defaulters. It may include house arrest, compensation, employment when possible and necessary, and supervision by a probation officer.
Claiming maintenance
In order to claim for maintenance, you must first determine the reasonable needs of the child on a monthly basis. There is no hard and fast rule, but generally the child’s share of the common expenses in the household is determined by allocating one-part per child and two-parts per adult or older child. The following table may be used as an example of how to calculate these expenses properly. In this example, each child will need 20% of the total expense shared by all members of the household.
